Garth N.,1 Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 24, 2017

0120142878 (E.E.O.C. Jan. 24, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Garth N.,1
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120142878

Hearing No. 430-2012-00329X

Agency No. DON-11-400855-02840

DECISION

On August 14, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. Complainant filed the instant appeal before he received the final order.2 Our
review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final
order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Plumber at the
Agency’s Naval Hospital in Portsmouth, Virginia.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

2 Although the instant appeal was filed prematurely, we shall exercise our discretion to accept
the appeal for purposes of review. We note that the Agency does not provide proof of the date
of Complainant’s receipt of its final order.
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On September 14, 2011, Complainant filed an EEO complaint wherein he claimed that the
Agency subjected him to harassment in reprisal for his prior protected EEO activity under Title
VII when:

1. On August 31, 2011, Complainant was informed by a coworker that his Second-
level Supervisor (SLS) went to the Naval Base and informed his future Supervisor
that the Supervisor’s performance will be graded on how he handles Complainant;

2. On August 26, 2011, Complainant was informed by a coworker that the SLS was
making statements that the SLS was going to try and get him moved from the Naval
Hospital, Portsmouth site;

3. On August 23, 2011, the SLS attempted to get a Pre-action investigation taken on
Complainant regarding putting him on “call back” duty. Complainant states he was
not provided with the proper tools to do the job and was not provided with a pager
or cell phone so he can be reached and subsequently the SLS would then inform his
First-level supervisor to write him up for not responding to the call back;

4. On August 17, 2011, Complainant was informed by a coworker that the SLS was
asking everyone where he lived in an attempt to intimidate or scare him, creating a
hostile work environment;

5. On June 8, 2011, Complainant found out he had been selected to work “call duty”
on all the remaining holidays in the fiscal year even though the SLS’s guidance was
that call duty for holidays be equally divided amongst them;

6. In May 2011, Complainant found out that the SLS had been harassing his future
mother-in-law with consistent telephone calls requesting they have an affair in an
effort to intimidate him in the workplace and to cause him mental and emotional
stress;

7. On February 16, 2011, the SLS came up to him and a coworker, and stated that he
did not want to see them together and if they did not like it, he would send their
asses to Yorktown and see how they like driving that far;

8. On a consistent basis, the SLS threatens Complainant with sending him to the
Yorktown site;

9. On a consistent basis, the SLS threatens to fire Complainant with only a two-week
notice; and

10. Since December 2010, quarterly awards to Complainant for working “call duty”
have ceased.

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s Motion for
Summary Judgment and issued a decision without a hearing on January 27, 2014.

The AJ found that no discrimination occurred. The AJ noted that on October 16, 2009,
Complainant was identified as a witness in a coworker’s EEO complaint. The coworker’s
complaint was resolved on October 22, 2009, by a settlement agreement.

The AJ stated that pursuant to a Memorandum of Agreement, volunteers are used to staff on-
call requirements, but if there are an insufficient number of volunteers, assignments are issued
by reverse seniority. The AJ noted that employees with on-call status can make arrangements
for another qualified person to cover their on-call duty. The AJ stated that Complainant was
the most junior person in the work center.

The AJ observed that Complainant failed to respond to calls on four occasions when he was in
an on-call status. The SLS instructed Complainant’s First-level Supervisor to initiate a fact
finding investigation concerning Complainant’s failure to respond. The AJ noted that a fact
finding investigation was conducted when another employee failed to respond while on call-out
duty. According to the AJ, Complainant failed to identify a similarly situated coworker who
failed to respond on multiple occasions while on call-out duty, who was treated more favorably
than him.

The AJ stated that the SLS had been acquainted with Complainant’s mother-in-law for years
prior to the matters at issue. Complainant’s mother-in-law informed Complainant that the SLS
called her several times and asked her to have an affair with him. The AJ noted that all
employees in Complainant’s work center received a quarterly call back award in 2009 or 2010,
but nobody received one after 2010. The AJ observed that Complainant believed he did not
receive an award because he filed a grievance regarding his job classification.

The AJ stated that on one occasion, the SLS noticed Complainant in a vehicle with a coworker
and commented, “I’ll send ya’lls asses to Yorktown if I see you working together.” The AJ
noted that Complainant believed the SLS threatened to send him to work in Yorktown because
Complainant had objected to the call-out procedure and the SLS thought he would file a
grievance. The AJ further noted that during Complainant’s probationary status, he had a
meeting with his acting supervisor and the SLS concerning his poor attendance. During the
meeting, the SLS informed Complainant that he would fire him in two weeks, but he did not
fire Complainant.

The AJ found that Complainant failed to set forth a prima facie case of reprisal. The AJ
observed that Complainant failed to identify any incidents of alleged reprisal that occurred
between October 2009 and November 2010. The AJ stated that the first harassing incident
Complainant identified occurred in December 2010, fourteen months after the prior EEO
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activity. According to the AJ, this period of time was too long to permit an inference of a
retaliatory motive. The AJ reasoned that there was no evidence that the conduct alleged was
connected to Complainant’s prior EEO activity in 2009.

The AJ further found that the alleged conduct did not affect a term or condition of employment
and/or have the purpose or effect of unreasonably interfering with Complainant’s work
environment and/or create an intimidating, hostile, or offensive work environment. The AJ
pointed out that all employees in the work center stopped getting call-out awards in 2010, and
that call-out duty was assigned based on seniority pursuant to a union agreement. The AJ
observed it was undisputed that Complainant did not respond to calls on four dates when he
had call-out duty. As for Complainant’s contention that he did not respond to the calls because
he was not provided with a pager or duty phone as required by the union agreement, and he
left his work-provided Blackberry on his work desk, the AJ stated that Complainant did not
identify any employee who was provided a pager and/or duty phone during the relevant period.

With regard to the SLS’s alleged threat to send Complainant to Yorktown because Complainant
objected to the seniority-based call-out system and because he might file a grievance, the AJ
noted that filing a labor grievance is not considered protected activity for purposes of a reprisal
analysis under Title VII. As for the meeting where the SLS allegedly threatened to fire
Complainant, the AJ observed that Complainant acknowledged he was unsure when the
meeting occurred, but testified that it was when he was a relatively new employee. The AJ
stated that Complainant was hired in 2006 and thus this meeting occurred before Complainant’s
EEO activity in 2009.

The Agency subsequently issued a final order dated March 17, 2014, wherein it adopted the
AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination
as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in issuing a decision without a hearing.
Complainant objects to the AJ’s reliance on a set period of time that limits protection from
reprisal. Complainant maintains that the SLS had a pattern of behavior aimed at punishing and
intimidating him based on his prior EEO activity. With regard to his claim that the SLS
informed his Supervisor that he would be judged on his treatment of Complainant,
Complainant states that the Agency did not deny this claim and that the AJ merely concluded
that he did not establish a connection to his EEO activity. Complainant contends that it was
not normal for the SLS to advise his Supervisor that he would be assessed entirely on how he
handles a single employee, without a disciplinary record, who was a witness in an EEO
complaint. Complainant also argues that the Agency did not offer a defense to the SLS
harassing his future mother-in-law. As for the call-out duty assignments, Complainant claims
that his issue was not being subjected to a less desirable schedule because he was in a junior
status under the memorandum of understanding, but rather that he was included with
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employees of different skill sets to increase the number of call periods on holidays he would
have to work.

In response, the Agency asserts that the fourteen-month gap precludes there being a causal
nexus between Complainant’s EEO activity and the incidents at issue. It urges the Commission
to affirm its final order implementing the AJ’s decision finding no discrimination.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

To establish a claim of harassment Complainant must show that: (1) he belongs to a statutorily
protected class; (2) he was subjected to harassment in the form of unwelcome verbal or
physical conduct involving the protected class; (3) the harassment complained of was based on
his statutorily protected classes; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the
conditions of [complainant's] employment and create an abusive working environment.”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove his harassment claim, Complainant must establish that he was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of a protected basis. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

To establish a prima facie case of reprisal, Complainant must show that (1) he engaged in
protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently,
he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his
protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC
Appeal No. 01A00340 (Sept. 25, 2000).

We find that the AJ properly issued a decision without a hearing. There were no material facts
in dispute such that the AJ would need to make credibility or fact findings following a hearing.
The parties do not dispute when Complainant’s protected EEO activity occurred, when the
Agency officials were made aware of his protected activity, and when the incidents at issue in
this complaint occurred.
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Assuming arguendo that Complainant established the first three elements of a prima facie case
of reprisal, we will examine the fourth element, whether a nexus exists between the protected
activity and the adverse treatment. It is well-settled that a nexus may be shown by evidence
that the adverse treatment followed the protected activity within such a period of time and in
such a manner that a retaliatory motive is inferred. The Supreme Court has held that the
temporal proximity between an employer’s knowledge of protected activity and the adverse
employment action must be “very close.” See Clark County School District v. Breeden, 532
U.S. 268 (2001) (holding that a three-month time period was not proximate enough to establish
a causal nexus); Salisbury v. United States Postal Service, EEOC Appeal No. 0120072505
(August 16, 2007) (a five-month time period was too much time to establish a causal nexus).
Here, the record reveals that Complainant’s most recent EEO activity occurred in October
2009. We observe that Complainant stated that the meeting with the SLS where he was
threatened with being fired occurred when he was still a relatively new employee. Thus, it is
evident that the meeting occurred before Complainant engaged in EEO activity in October
2009 and cannot form part of a reprisal claim. The first claim of reprisal that occurred after
Complainant was a witness in a coworker’s EEO complaint in October 2009 occurred
approximately fourteen months later in December 2010. Complainant has not offered any
other evidence that proves a nexus existed. Therefore, we find that Complainant has not been
able to establish by a preponderance of the evidence that a nexus existed between the protected
activity and the adverse treatment.

We find, therefore, that Complainant is unable to establish a claim of harassment as he is
unable to show that the incidents of which he complains were based on his protected EEO
activity.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:
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1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
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time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

January 24, 2017
Date